Ford v. Ford ( 2016 )


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    2016 UT App 127
    THE UTAH COURT OF APPEALS
    TRACI CRAWFORD FORD,
    Appellee,
    v.
    PAUL JAMES FORD,
    Appellant.
    Memorandum Decision
    No. 20141040-CA
    Filed June 23, 2016
    Fifth District Court, St. George Department
    The Honorable Jeffrey C. Wilcox
    No. 084500221
    Robert A. Winsor, Attorney for Appellant
    N. Adam Caldwell and Stephen R. Schwendiman,
    Attorneys for Appellee
    SENIOR JUDGE PAMELA T. GREENWOOD authored this
    Memorandum Decision, in which JUDGES STEPHEN L. ROTH and
    KATE A. TOOMEY concurred.1
    GREENWOOD, Senior Judge:
    ¶1    Paul James Ford (Ford) appeals the district court’s order
    imposing sanctions for his failure to respond to his ex-wife Traci
    Crawford Ford’s—now Traci Tun (Tun)—discovery requests.
    We affirm.
    ¶2   Ford and Tun divorced in 2008. At that time, Ford was
    making “a substantial amount of money,” and the divorce
    1. Senior Judge Pamela T. Greenwood sat by special assignment
    as authorized by law. See generally Utah R. Jud. Admin. 11-
    201(6).
    Ford v. Ford
    decree required Ford to pay Tun monthly child support. In 2012,
    Ford filed a motion to modify child support, property
    distribution, and visitation, claiming his income had
    significantly declined. Tun responded and filed an ex parte
    motion for an order to show cause, claiming Ford had not paid
    child support as ordered. The district court issued an order to
    show cause. However, due to various continuances, no hearing
    occurred until June 2014. In anticipation of the June hearing on
    the two motions, Ford served Tun with discovery requests in
    April 2014. Tun timely responded to those requests and served
    Ford her own discovery requests. Ford ignored Tun’s requests.
    Tun sent Ford a letter reminding him of the requests and
    extending the time frame within which he could respond before
    she would file a motion “seeking to have [his] pleadings
    stricken” as a sanction under rule 37 of the Utah Rules of Civil
    Procedure. Ford did not respond, and Tun filed a motion to
    strike Ford’s pleadings.
    ¶3      The district court conducted an evidentiary hearing on
    June 26, 2014, and first addressed Tun’s motion to strike. Ford
    argued he had ignored Tun’s requests because she had
    submitted them “outside of the time allowed by the Rules of
    Civil Procedure” and had not requested an extension from the
    district court and because Tun was only allowed ten requests for
    admission under rule 26, not the twelve she submitted.2 The
    2. Rule 26(c)(5) of the Utah Rules of Civil Procedure governs
    standard fact discovery and provides that suits claiming
    amounts in controversy between $50,000 and $300,000 are
    limited to ten requests for admission. Utah R. Civ. P. 26(c)(5).
    Rule 26(b)(2) explains that discovery requests are proportional,
    however, if they meet a number of criteria, including
    (1) reasonability considering the needs of the case, the amount in
    controversy, and the importance of the discovery in resolving
    the issues; (2) the benefit of the discovery when compared with
    the burden or expense it imposes; and (3) its furtherance of a
    “just, speedy and inexpensive determination of the case,” among
    (continued…)
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    Ford v. Ford
    district court asked Ford, “How can [Tun] prepare for your . . .
    presentation when [s]he’s been denied discovery?” Ford told the
    court, “That’s a valid point,” but that the court could “continue
    the case” in light of the fact that he had not responded. The court
    then asked Ford if he would still argue that his failure to
    respond was appropriate “[e]ven though [Tun] responded to
    your discovery that was earlier this year after fact discovery
    closed?” Ford replied, “You’re right,” but that Tun could have
    argued “the same.” Ford argued that because “*s+tandard fact
    discovery has been closed, [he did not] necessarily need to
    respond.” The district court then offered Ford a solution: rather
    than strike Ford’s pleadings as a sanction per Tun’s request, it
    would instead “consider a continuance if [he would pay Tun’s+
    attorney’s fees that were expended in seeking discovery and
    preparing for trial today” and if he would respond to Tun’s
    discovery requests. Ford declined. The court then struck Ford’s
    pleadings without prejudice, including his motion to reduce his
    child support payments, and proceeded to consider evidence on
    Tun’s order to show cause. In so doing, the district court held
    that Tun’s twelve requests for admission were deemed admitted.
    ¶4     Ford appeals the district court’s order, contending first
    that the district court erred when it required him to respond to
    Tun’s discovery requests, and second that the district court’s
    choice of sanction was “harsh given the facts of the case.” “We
    review discovery rulings for an abuse of discretion.” Dahl v.
    Harrison, 
    2011 UT App 389
    , ¶ 11, 
    265 P.3d 139
    . “An abuse of
    discretion may be demonstrated by showing that the district
    court relied on an erroneous conclusion of law.” Kilpatrick v.
    Bullough Abatement, Inc., 
    2008 UT 82
    , ¶ 23, 
    199 P.3d 957
     (citation
    and internal quotation marks omitted). Furthermore, we grant
    the district court “a great deal of deference in selecting discovery
    (…continued)
    other things. 
    Id.
     R. 26(b)(2). A district court “has broad discretion
    in deciding whether a discovery request is proportional.” 
    Id.
    advisory committee notes.
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    Ford v. Ford
    sanctions” and will “overturn a sanction only in cases
    evidencing a clear abuse of discretion.” Kilpatrick, 
    2008 UT 82
    ,
    ¶ 23.
    ¶5     Ford first claims that he had no obligation to respond to
    Tun’s discovery requests, because the number of Tun’s
    discovery requests exceeded the number of requests allowed
    under rule 26(c)(5) of the Utah Rules of Civil Procedure and also
    because her requests were served late. Tun responds that “the
    Utah Rules of Civil Procedure obligate [Ford] to provide the
    discovery” and that if he found Tun’s requests deficient in some
    way he should have objected or moved for a protective order
    “rather than simply remain silent.” Because “there was no way
    for [Tun] to sufficiently present her case without the requested
    information,” Tun contends that the district court properly
    determined that Ford “was obligated to produce the requested
    discovery” or respond in writing.
    ¶6     Rule 36 of the Utah Rules of Civil Procedure requires
    parties to respond to requests for admission within twenty-eight
    days. See Utah R. Civ. P. 36(b)(1). It provides that a “matter is
    deemed admitted unless, within 28 days after service of the
    request, the responding party” responds in writing. 
    Id.
     It further
    provides that, unless a party “objects to a matter, the party must
    admit or deny the matter or state in detail the reasons why the
    party cannot truthfully admit or deny.” 
    Id.
     R. 36(b)(2) (emphasis
    added). And “[a]ny reason [for objection] not stated is waived
    unless excused by the court for good cause.” 
    Id.
     R. 36(b)(3). As
    we have previously noted, “[t]he rule does not say the court may
    admit the matter—it says [t]he matter is admitted. By simple
    operation of Rule 36(a), parties who ignore requests for
    admissions do so at their peril.” Mercado v. Hill, 
    2012 UT App 44
    ,
    ¶ 8, 
    273 P.3d 385
     (second alteration in original) (citation and
    internal quotation marks omitted). By way of further
    explanation, under rule 36, “*o+nce the requests have been
    deemed admitted, a party may move to amend or withdraw the
    admissions.” 
    Id.
     Thus, “the trial court has discretion to deny a
    motion to amend [or withdraw admissions], but its discretion to
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    Ford v. Ford
    grant such a motion comes into play only after the preliminary
    requirements *of Rule 36+ are satisfied.” 
    Id.
     (alterations in
    original) (citation and internal quotation marks omitted).
    ¶7     Accordingly, the district court did not err when it
    determined that Ford was required to respond to Tun’s requests
    for admission. Indeed, it did not have discretion to rule
    otherwise. Here, Ford chose to ignore Tun’s discovery requests
    because he believed that they were “not proportional to the
    case” and because they were “8 months late.” If Ford wished to
    challenge Tun’s requests, he was required to object in writing.
    See Utah R. Civ. P. 36(b)(3). Alternatively, Ford could have
    moved the court to amend or withdraw the newly admitted
    material once it was deemed admitted. See Mercado, 
    2012 UT App 44
    , ¶ 8. He did not. And Ford’s argument that the
    untimeliness of Tun’s discovery requests provided him with
    good cause not to respond was not persuasive to the district
    court. As the court noted, Ford himself had served untimely
    discovery requests on Tun, requests to which she responded.
    The district court also noted that Ford’s failure to respond put
    Tun at an unfair disadvantage in preparing for trial.3 Thus under
    the circumstances the district court acted well within its
    authority in concluding that Ford was obligated to respond to
    Tun’s discovery requests.
    ¶8     Ford next argues that the district court abused its
    discretion when it sanctioned him “for not responding to
    discovery that was not allowed by the Rules” by striking his
    pleadings and deeming the requests for admission to be
    admitted. Ford asserts that the sanctions are unduly harsh. Tun
    replies that it was appropriate for the district court “to impose
    3. On appeal, Ford does not argue that the district court abused
    its discretion when it failed to find good cause for Ford’s refusal
    to respond to Tun’s requests for admission. Nevertheless, for the
    reasons stated above, we do not believe the district court abused
    its discretion in so deciding.
    20141040-CA                     5               
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    Ford v. Ford
    [upon Ford] any sanction it desired under Rule 37” because he
    failed to respond to her requests.4
    ¶9     At trial, the district court offered Ford a choice: it would
    grant him a continuance with time to respond to the discovery
    requests if Ford would pay Tun’s attorney fees “expended in
    seeking discovery and preparing for trial.” Alternatively, it
    would grant Tun’s motion and strike Ford’s pleadings. Ford
    rejected the court’s offer, and the district court struck Ford’s
    pleadings without prejudice and, in accordance with rule 36,
    deemed Tun’s requests for admission admitted. See supra ¶¶ 6–7.
    ¶10 When discovery requests are outstanding, “*f+ailure to
    respond in the appropriate time frame may subject the
    noncomplying party to sanctions under Rule 37.” Tuck v. Godfrey,
    
    1999 UT App 127
    , ¶ 27, 
    981 P.2d 407
    . Rule 37(b) authorizes the
    court—upon motion and within its discretion—to “strike all or
    part of the pleadings,” “deem the matter or any other designated
    facts to be established in accordance with the claim or defense,”
    and5 “order the party or the attorney to pay the reasonable costs,
    4. The parties’ arguments are based upon the pre-2011 versions
    of rules 26 and 37 of the Utah Rules of Civil Procedure. Our
    analysis, likewise, applies the pre-2011 rules.
    5. While rule 37(b) uses the conjunctive “and” when identifying
    the panoply of sanctions available to a district court, we note
    that the disjunctive “or” is also applicable to an interpretation of
    what sanctions the court may impose, i.e., because the statute
    uses the term “and,” the court “may impose” all of the sanctions
    available to it within its discretion; it may also impose only one
    sanction or its choice of sanctions, depending on the facts and
    circumstances of the case. Utah R. Civ. P. 37(b); Bodell Constr. Co.
    v. Robbins, 
    2009 UT 52
    , ¶ 35 n.29, 
    215 P.3d 933
     (explaining that
    rule 37 “allows for either the exclusion of the untimely
    disclosure or any other sanctions authorized by Subdivision
    (b)(2). Other available sanctions include order[ing] the [non-
    (continued…)
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    Ford v. Ford
    expenses, and attorney fees, caused by the failure *to respond+.”
    Utah R. Civ. P. 37(b)(1), (4), (5). And district courts have “broad
    discretion in selecting and imposing sanctions for discovery
    violations.” Tuck, 
    1999 UT App 127
    , ¶ 15 (citation and internal
    quotation marks omitted). Furthermore, “*a+ppellate courts may
    not interfere with such discretion unless abuse of discretion is
    clearly shown.” 
    Id.
     “A trial court’s abuse of discretion in
    selecting which sanction to impose may be shown only if there is
    either an erroneous conclusion of law or no evidentiary basis for
    the trial court’s ruling.” 
    Id.
     (citation and internal quotation
    marks omitted). We have already determined that the district
    court did not err in concluding that Ford violated rule 36 of the
    Utah Rules of Civil Procedure. We now examine whether the
    district court exceeded its discretion by imposing the sanctions it
    chose.
    ¶11 The facts of this case support the district court’s choice of
    sanctions. After the close of fact discovery, Ford himself served
    Tun with untimely discovery requests. She responded to them
    and sent Ford her own discovery requests, which he ignored.
    She sent Ford a letter offering him more time to respond and
    informed him that she would file a motion to strike if he did not
    respond. He still chose not to respond. Tun filed her motion to
    strike. At the hearing on the matter and after Ford explained to
    (…continued)
    compliant] party or the attorney to pay the reasonable expenses,
    including attorney fees, caused by the failure.” (alterations in
    original) (citations and internal quotation marks omitted)); see
    also Morton v. Continental Baking Co., 
    938 P.2d 271
    , 276 (Utah
    1997) (indicating that “a party’s conduct merits sanctions under
    rule 37 if any of the following circumstances are found:” (1)
    willfulness; (2) bad faith; (3) some fault; or (4) persistent dilatory
    tactics (emphasis added) (citations omitted)); Tuck v. Godfrey,
    
    1999 UT App 127
    , ¶ 21, 
    981 P.2d 407
     (“In sum, once the threshold
    determination is made, sanctions are warranted, and the choice
    of sanctions is the responsibility of the trial judge.”).
    20141040-CA                      7                
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    Ford v. Ford
    the court that he did not respond in part because Tun’s requests
    were not timely, the court noted that Ford had made untimely
    requests to which Tun had responded. The court offered Ford
    the opportunity to rectify his decision with a continuance if he
    provided the requested discovery and agreed to pay Tun’s
    attorney fees. Ford declined. The district court then struck Ford’s
    pleadings—without prejudice—in accordance with rule 37 of the
    Utah Rules of Civil Procedure and deemed Tun’s requests for
    admission admitted in accordance with rule 36. Thus, there was
    an evidentiary basis for the district court’s choice of sanctions in
    this case.
    ¶12 Under these circumstances, the district court’s choice of
    sanctions was also not “harsh,” as Ford claims. But even if it
    were “harsh,” a district court may impose a harsh sanction on a
    party and still not abuse its discretion. Wright v. Wright, 
    941 P.2d 646
    , 650 (Utah Ct. App. 1997) (“[A]s the Utah Supreme Court
    emphasized . . . , although some of Rule 37’s discovery sanctions
    are harsh and extreme, . . . we will not interfere with the trial
    court’s imposition of discovery sanctions . . . , unless [an
    appellant] clearly shows the trial court abused its discretion.”).
    Here, the district court did not abuse its discretion by striking
    Ford’s pleadings without prejudice after Ford failed to respond
    to Tun’s requests for admission when Tun had responded to
    Ford’s own untimely requests for admissions and when the
    district court offered Ford a way out—which he refused to take.
    ¶13 We conclude that the district court acted within its
    discretion when it found that Ford had an obligation to respond
    to Tun’s discovery requests and when it imposed sanctions on
    Ford for his failure to respond to those requests. Accordingly,
    we affirm the district court’s decision.
    20141040-CA                     8                
    2016 UT App 127
                                

Document Info

Docket Number: Memorandum Decision 20141040-CA

Judges: Greenwood, Pamela, Roth, Stephen

Filed Date: 6/23/2016

Precedential Status: Precedential

Modified Date: 9/1/2023